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Mumbai: On Friday, June 24, a three-judge bench of the apex court headed by Justice A. M. Khanwilkar dismissed a petition filed by Zakia Jafri – widow of slain Congress leader Ehsan Jafri – challenging the SIT’s closure report which said there were no grounds to prosecute the then Gujarat Chief Minister Narendra Modi and 63 other officials for their alleged role in the 2002 Gujarat riots.
The court in its 452-page long verdict decried allegations of a “larger conspiracy”, and came down heavily upon Jafri’s co-petitioner, activist Teesta Setalvad and former state officials including jailed IPS officer Sanjiv Bhatt, former Gujarat DGP RB Sreekumar and former Home Minister Haren Pandya – without naming any of them.
The 452-page order noted the “coalesced effort of the disgruntled officials” so as to “create a sensation”. Further, the court in its obiter pointed to a “devious stratagem adopted to keep the pot boiling” with an “ulterior design”.
Notably, the judgment added that “[A]ll those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”
Through these remarks, the bench arrived at a conclusion about the commission of an offence for which the petitioners were never accused of earlier, nor served any notice of. In a move raising several questions of due procedure, these observations by the top court were followed by the Gujarat ATS’s arrests of Setalvad and Sreekumar the very next day.
An FIR was registered against them under provisions including section 468 (forgery), 194 (giving or fabricating evidence with intent to procure conviction of capital offence), 218 (public servant framing incorrect record or writing with intention to save person from punishment) and 120-B (criminal conspiracy) of the IPC, naming them along with Sanjiv Bhatt.
The court’s remarks – which contradicts the precedent set in 1963 in the case of State of Uttar Pradesh v. Mohammad Naim – have triggered a debate on the legality of the arrests and the observations made. Former Chief Justice of the Allahabad high court, Govind Mathur pointed out that “If there was any apprehension about the petitioner’s ulterior motives in the process for seeking justice, then the appropriate course was to call them by reasonable notice to explain their version”. Noting how “no one can be marked with stigma behind [their] back”, Mathur added, “A conclusion arrived at without hearing the person marked with this stigma is not permissible in law, being hit by the principles of natural justice.”
Meanwhile, a former judge of the Supreme Court told The Wire that the bench’s accusations leading to subsequent arrests were “highly improper” on procedural terms, and said that both Setalvad and Zakia Jafri deserved to have been given due notice and a chance to present their counter.
In 2004, the Supreme Court accused the Gujarat government of ‘abuse of process’ in the Best Bakery riot case – the same charge now levelled against Setalvad and Jafri – but stopped well short of suggesting any punitive measures: “At the least the aforesaid aspects lead to the inevitable conclusion that the application is thoroughly misconceived, a sheer abuse of process of law and deserves to be dismissed with exemplary costs. But we refrain from imposing any cost,” the bench of Justices Arijit Pasayat and Doraiswamy Raju wrote in their judgment.
Highlighting the procedural lapse in last week’s judgment, senior advocate Sanjay Hegde said that it is “settled law” that any adverse action against a person could be commenced only after serving due notice. “The court to the best of my knowledge, has neither issued notice of perjury or contempt, to anyone in these proceedings,” Hegde said. With no specific notice of any kind issued by the court, he added that he was “perplexed” by the government’s assumption of a court directive to arrest Setalvad or anyone else.
Meanwhile, Anand Yagnik, a senior lawyer practicing in the Gujarat high court said, “When a court, particularly a constitutional court, makes observations, [the police] do not need prima facie evidence to arrest them. These observations themselves constitute a foundation to arrest them. That is why before making these observations, the Supreme Court should have reopened the matter, issued proper notice, given the petitioner the reference that these are the issues we intend to take up right now. This is leaving aside the question of prima facie evidence in order to register a complaint against Narendra Modi.”
Yagnik added that though “we do not question the honesty and integrity of the court”, the observations made were “constitutionally, ethically and legally improper.”
Suggesting that the court should “recall the order or expunge these observations or file a review petition of this order should be filed, or a curative petition”, advocate Yagnik added that the real question was of the apex court exceeding its own jurisdiction. “Be it stare decisis or obiter dicta, the observations of the Supreme Court can’t be made the basis of an FIR, and one can’t file it after 20 years, it’s too long a time. The other question is why should the Supreme Court exceed its jurisdiction?”, he asked.
Yagnik also told The Wire that the initial Bench constituted by the Supreme Court to look into the post-riots matters “sought Teesta Setalvad’s assistance”, and “many orders even acknowledge her participation and assistance to the court.” Further, under the Commission of Inquiries Act, those who depose are to be protected.
“These commissions are constituted for the ascertainment of truth, just like South Africa had a truth and reconciliation commission. Sanjiv Bhatt deposed as a government officer, as did Sreekumar. They aren’t to be punished, but to be protected under the Act. The court seems not to have paid attention to the fact that they have deposed, and had every right to depose as government officers who were involved in the matter”, he added.
Sabah Gurmat is an independent journalist and law graduate based in Mumbai